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2005 DIGILAW 713 (JHR)

Satyanarayan Mahto v. State Of Jharkhand

2005-09-16

SUDHANSU JYOTI MUKHOPADHAYA

body2005
ORDER S.J. Mukhopadhaya, A.C.J. 1. This application has been preferred by the petitioner against the order contained in Letter No. 4786, dated 20th September 2004 issued by District Superintendent of Education, Ranchi. By the said order the authority rejected the claim of the petitioner for salary for the period from January 2002 onwards and held that salary for the period of unauthorized absence will not be paid on the principle of "No work no pay". 2. According to petitioner he was transferred in December 2002 to Ulilahar Middle School, Tamar Block, District Ranch! where he submitted his joining but the Headmaster refused to accept the joining. Thereafter his joining having not been accepted and he having not been paid salary since January 2002 moved before this Court in WP (S) No. 5132 of 2003 for acceptance of his joining and payment of salary. This Court by its order dated 5th February 2004 held as follows :- It has been categorically stated in para 6 of the writ petition that when the petitioner went to Ulilahar Middle School for joining, the Headmaster refused to take his joining on the ground that there was no vacant post. In para 7 of the writ petition it is stated by the petitioner that he immediately informed the fact to the D.S.E., Ranchi and also demanded from the Headmaster in writing of his refusal to allow him to join. The Headmaster of the said school gave in writing on 21.5.2003 which was submitted before the D.S.E. on 30.5.2003. A copy of the refusal given by the Headmaster has been annexed with the writ petition as An-nexue-3. These facts have not been specifically controverted in the counter affidavit although the counter-affidavit is sworn by the D.S.E., Ranchi. In that circumstances, I have no option but to hold that petitioner did submit his joining in Ulilahar Middle School and their refusal to accept his joining. There is nothing on the record to show that either a fresh order of transfer was issued or the District Suprintendent of Education took any fresh decision. He is therefore directed that either the petitioner is allowed to join the transferred place or a fresh order of transfer will be issued within two weeks from production of a copy of this order. He is therefore directed that either the petitioner is allowed to join the transferred place or a fresh order of transfer will be issued within two weeks from production of a copy of this order. So far payment of salary for the aforesaid period is concerned, the District Superintendent of Education shall take a fresh decision after giving opportunity of hearing to the petitioner such decision must be taken within three weeks from the date of receipt/production of a coy of this order along with a copy of the representation of the petitioner. 3. In spite of the Courts order it appears that the joining of the petitioner was not accepted nor he was paid salary since January 2002. The petitioner had to move before this Court by preferring a contempt petition being Contempt (Civil) Case No. 363 of 2004. The District Superintendent of Education having passed the impugned order dated 20th September 2004, this Court did not choose to proceed further against the opposite parties and dispose of the contempt application. 4. On 28th April 2005 this Court passed the following order : The District Superintendent of Education, Ranchi is directed to appear in person and to explain as to how the impugned order as contained in An-nexure-2 has been passed holding that the absence of the petitioner was deliberate and unauthorized when this Court already held in Annexure-1 that the petitioners joining in Ulilahar Middle School was refused by the Head Master of the school on the ground that there was no vacant post in the school. Put up this case on 11th May 2005. Let a copy of this order be handed over to G.P. II for communicating the same to the concerned District Superintendent of Education. 5. On 11th May, 2005 the District Superintendent of Education, Ranchi appeared and informed that he had realized his mistake and tendered his unqualified apology and sought two days time to file a fresh show cause reply in compliance of the order dated 28.4.1005. 6. On 29th June, 2005 the respondents handed over a demand draft for a sum of Rs. 87.491/- to Mr. H.K. Mahto, learned Counsel appearing on behalf of the petitioner. It was informed that the said amount contained in the demand draft was towards arrears of salary of the petitioner for the period from 21st May. 2003 to 20th September. 2004. 7. 87.491/- to Mr. H.K. Mahto, learned Counsel appearing on behalf of the petitioner. It was informed that the said amount contained in the demand draft was towards arrears of salary of the petitioner for the period from 21st May. 2003 to 20th September. 2004. 7. It is informed that the petitioner was transferred to another school on 20th September 2004 but the petitioner has failed to join such post. The petitioner has refused this statement that he was transferred on or after 20th September 2004. It is stated that he is still continuing in the school where he was functioning prior to 20th September 2004. There is nothing on the record to suggest that the petitioner was transferred after 20th September 2004 but he failed to Join. 8. It will be evident that this Court after hearing the parties by its order dated 5th February 2004 passed in WP (S) No. 5132 of 2003 held that the petitioner did submit his joining in Ulilahar Middle School. Tamar Block. District Ranchi but the authority refused to accept the joining. Such finding of the Court having reached finality and being binding between the parties, it is not open to the respondents to allege that the petitioner had not joined the transferred school, as observed by the District Superintendent of Education, Ranchi in his impugned letter No. 4786. dated 20th September 2004. Further it appears that the authority has not taken into consideration the relevant rules under Rule 165 of Bihar Service Code, 1952 (Now Jharkhand Service Code). A Government servant, who remains absent after the end of his leave, is entitled to leave salary for the period of such absence and the period is required to be debited against his leave account in the manner as prescribed under such Rule. As per rule, a person is entitled for transit leave on transfer. Therefore, if a person after the end of transit leave remains absent from duty in such case the appropriate decision can be taken under Rule 165 of the Bihar Service Code (Now Jharkhand Service Code) but the principle of "No work no pay" can not be applied. This apart, a person can not be held to be "unauthorized absent from duty" without giving any show cause notice, as unauthorized absence from duty may attract misconduct. This apart, a person can not be held to be "unauthorized absent from duty" without giving any show cause notice, as unauthorized absence from duty may attract misconduct. Similarly, if a person is found to be "unauthorized absent from duty" which does not amount to misconduct, in such case the authority is required to determine the questions as to how such period to be counted and what salary to which such employee is entitled. 9. The order contained in the impugned letter No. 4786, dated 20th September 2004 passed by the District Superintendent of Education, Ranchi being against the finding of this Court in WP(S) No. 5132 of 2003 and having been passed without taking into consideration the relevant provisions of law, such order can not be sustained. The order contained in Letter No. 4786. dated 20th September. 2004 passed by District Superintendent of Education. Ranchi is, accordingly, set aside. The case is remitted with direction to the District Superintendent of Education. Ranchi to consider the case of the petitioner for payment of salary of the period from January 2002 to 20th May 2003 taking into consideration the Courts finding dated 5th February 2004 passed in WP(S) No. 5132 of 2003. wherein the Court accepted and held that the petitioner submitted his joining in Ulilahar Middle School. Tamar Block, District Ranchi after his transfer. The District Superintendent of Education. Ranchi is also directed to determine and pay the admitted salary for the period from 21st September 2004 up till date. 10. It will be open to the petitioner to file a detailed representation showing the place where he worked between 21st September 2004 and till date. The authority after taking into consideration the aforesaid observations made by the Court, direction as given above, the stand as may be taken by the petitioner with regard td the period from 21st September 2004 onwards, will pass appropriate order and pay admitted dues within a period of three months from the date of receipt/production of a copy of this order. 11. The writ petition is allowed with aforesaid observations and directions.